Ortiz v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-1775

A PRIL O RTIZ, as administrator of the

E STATE OF M AY M OLINA,

Plaintiff-Appellant,

v.

T HE C ITY OF C HICAGO, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 04 C 7423—John F. Grady, Judge.

A RGUED F EBRUARY 15, 2011—D ECIDED A UGUST 25, 2011

Before R OVNER, W OOD , and E VANSΠ, Circuit Judges.

W OOD , Circuit Judge. May Molina, a prominent civil

rights activist known for protesting police practices, died

Œ

Circuit Judge Evans died on August 10, 2011, and did not

participate in the decision of this case, which is being

resolved by a quorum of the panel under 28 U.S.C. § 46(d).

2 No. 10-1775

in custody over 24 hours after officers arrested her on

drug charges at her home. Molina was disabled, obese,

and in poor health. She took daily medications for

several ailments, including diabetes, a thyroid condition,

hypertension, and asthma. Pursuant to a Chicago Police

Department (CPD) policy that prohibits arrestees from

taking medications while in lockup unless they are taken

to a hospital, Molina had no access to her medications

while in custody. When she met with her lawyer about

16 hours into her detention, she could hardly speak, walk,

or stand. He told the lockup keepers to get Molina to

a hospital because she was clearly sick. None of the

guards on duty responded. Instead, her health deteri-

orated and she died alone in her cell.

April Ortiz, who is Molina’s daughter, is acting as the

administrator of Molina’s estate. (Appellant’s opening

brief represents that of the several plaintiffs who ap-

peared in the district court, the only one remaining is

the Estate. For convenience we refer to it as Ortiz.) First,

Ortiz argues that the district court improperly granted

summary judgment on her claim that the defendants,

collectively the City of Chicago and the lockup officers,

unreasonably denied Molina medical care by not taking

her to the hospital so that she could resume her medica-

tions. Embedded in this claim is an evidentiary issue,

because the court excluded Ortiz’s expert witness. Second,

Ortiz argues that the district court erred in granting

summary judgment for the defendants on her claim

that they unconstitutionally held Molina in custody for

27 hours without taking her before a judge for a probable

cause hearing. We reverse the district court’s grant of

No. 10-1775 3

summary judgment on the denial of medical care claim

but affirm on the delayed hearing claim.

I

Because Ortiz appeals from a grant of summary judg-

ment against her, we construe the evidence and rea-

sonable inferences from it in her favor. CPD officers

searched Molina’s home at 3526 N. Halsted Street

pursuant to an uncontested search warrant on May 24,

2004. Officers apparently received a tip from a con-

fidential informant stating that he had purchased small

amounts of drugs from Molina and from her son, Michael

Ortiz, who lived upstairs. Based on this information,

17 officers raided the two-flat apartments where Molina

and her son lived. There they recovered a number of

tinfoil packets and some brown putty. Officers later

arrested the two, but all charges against Michael Ortiz

were eventually dropped.

Molina required constant access to an array of medica-

tions to survive. She had Type II diabetes mellitus that

required medication (including Glipizide and Metformin)

and monitoring to ensure that her blood sugar was con-

trolled. Otherwise, she risked slipping into either a

hyperglycemic or hypoglycemic state, which could lead

to a fatal coma. She also suffered from life-threat-

ening hypertensive and thyroid conditions, both of

which required medication (including Fursosemide,

Enalapril, and Potassium Chloride) and monitoring. She

used a wheelchair or walker to get around. At the time of

her arrest (10:07 p.m. on May 24), Molina informed the

4 No. 10-1775

officers that she took thyroid and diabetes medications

and asked whether she could bring them along. The

officers told her that medications were not permitted

in lockup.

Initially, Molina was detained briefly at the 23rd

District lockup, which does not have a women’s unit. Ortiz

brought Molina’s medications to that facility, explaining

to the officer on duty (who is not a defendant in this

lawsuit) that her mother needed the medications “to

save her life.” The officer refused to accept the medica-

tions, stating that Molina would soon be transferred to

the 19th District lockup and then taken to Cermak

Hospital where she would be provided with medical care.

Molina arrived at the 19th District lockup at 4:25 a.m.

on May 25. At that time, Officers Avis Jamison and

Authurine Pryor were staffing the 9:30 p.m. to 5:30 a.m.

overnight shift. Officer Jamison, in Pryor’s presence,

interviewed Molina upon arrival to create what the

parties call the screening record. She asked if Molina had

any “serious medical problems,” and Molina responded

that she did. Molina described her medical problems to

Jamison, who noted on the screening record that Molina

was taking medicine for diabetes, thyroid-related issues,

and other conditions. Jamison did not inquire further

about the type or frequency of Molina’s medications.

After completing the screening record, Jamison took it to

the front desk, where it remained accessible to all front

desk personnel. Officer Pryor photographed and finger-

printed Molina, and also asked her routine questions

about whether she was sick, injured, or in need of medical

No. 10-1775 5

assistance. Pryor says that Molina responded that she

was fine and did not want to go to the hospital.

During this time, another arrestee, Diane Rice, was

detained at the 19th District lockup. She heard Molina

yell several times for a doctor and a wheelchair, though

exactly when is unclear. Rice recounted that after

Molina yelled for a doctor, someone yelled back: “Ma’am,

we asked you when you came in if you needed a doctor,

and you said no.” Rice also asserts that the officers did

not conduct the requisite 15-minute cell checks.

After Molina was photographed and fingerprinted,

CPD personnel transmitted her prints to the “10-print”

unit for verification. Around 5:30 a.m., Officer Pryor

observed Molina walk back to her cell after making a

phone call. Pryor estimated that it took Molina five to

seven minutes to walk a distance of about 30 feet. The

next shift began at 5:30 a.m. on May 25, at which

point Officers Catherine Ziemba and Tamara Lemon-

Richmond took over. During the shift change, Pryor

informed Ziemba that Molina had trouble walking and

would need a “special needs” car to go to court because

she was obese and moving slowly. By about 7:00 a.m.,

Molina’s identity was manually verified and confirmed.

CPD personnel then transmitted Molina’s information

to the “Instant Update Unit,” which transferred her

arrest history from a typewritten form to a computer

database and checked for outstanding warrants.

At 12:12 p.m. all administrative tasks that were

needed before Molina could be taken to bond court

were completed. Neither Ziemba nor Lemon-Richmond

6 No. 10-1775

tried to send her to bond court before their shift ended

at 1:30 p.m.

Another shift change took place at 1:30 p.m., at which

point Officers Diane Yost and Beverly Gilchrist took

charge of the lockup until 9:30 p.m. Around 4:00 p.m.,

Molina’s long-time attorney, Jerry Bischoff, arrived to

speak with his client. Yost and Gilchrist escorted Molina

to meet with Bischoff. According to Yost, it took Molina

several minutes to walk a few feet, and she had to hold

on to the wall to make any progress. Bischoff’s testi-

mony provides the clearest insight into Molina’s health

during this time. He said that Molina, whom he had

never seen out of a wheelchair, was “having difficulty

breathing” and “was breathing like someone who had

just . . . run up a flight of stairs.” Bischoff further noted

that Molina was groggy, exhausted, and could not stand

up on her own. Upon making these observations,

Bischoff concluded that it would be unproductive to

discuss Molina’s case with her at that time and instead

he inquired about her health. He asked if she was

diabetic, and Molina, unable to speak, nodded her head

yes. Bischoff then asked how she took her medication,

and she gestured that she did so orally. When Bischoff

inquired whether she had been able to take her medica-

tions while in lockup, Molina gestured to indicate that

she had not. Bischoff thought that Molina belonged in

the hospital and terminated the meeting. He then told

Yost and Gilchrist that Molina needed to go to Cermak

Hospital because she was “clearly sick.” According to

Bischoff, the officers responded, “we are working on

No. 10-1775 7

it, counsel.” Yost denies being present at that time, and

Gilchrist contends that this exchange never occurred.

Officer Maja Ramirez was working at the front desk,

where Officer Jamison had previously deposited Molina’s

screening record, on May 25. During her shift, Ramirez

received five to ten calls from a number of different

people informing her that Molina needed to take her

medications or go see a doctor. Ramirez says she did not

recall whether the callers told her about specific medica-

tions, nor did she ask any follow-up questions. Instead

she told each caller that a request for medication must

come from the detainee, not a third party. Ramirez also

says that she informed one of her supervisors about

the phone calls after receiving the first few. Ramirez did

not take any further action, such as walking to the

lockup to see if Molina was all right, because that was

not her job. The plaintiffs say that the supervisors on

duty at the time were Sergeant Debra Holmes and Lieuten-

ant William Wallace. Neither of the supervisors took

any responsive action.

Officer Jamison returned to work the 9:30 p.m. to

5:30 a.m. overnight shift on May 25 with Officer Martha

Gomez. Jamison is the only officer who had direct

contact with Molina on two different shifts. At 11:00 that

night, another arrestee, Jasmine Vaccarello, arrived in

lockup. Vaccarello says that she heard Molina yell for

attention when she first arrived. While Vaccarello was

being led to her cell, she heard Molina ask the guards

for her medications, a walker, and a telephone call. Ac-

cording to Vaccarello, the officers on duty, Jamison and

8 No. 10-1775

Gomez, ignored Molina. While Vaccarello was in her

cell, she heard Molina call out for help, but to no avail.

At some point, Vaccarello became concerned enough

that she called out for help on Molina’s behalf, at which

point either Jamison or Gomez yelled back: “shut the f---

up!” Vaccarello says that the officers on duty that night

did not conduct the required 15-minute cell checks.

Finally, Vaccarello explains that she heard what sounded

like snoring coming from Molina’s cell, but that over

time the sound became shallower. Eventually, she could

no longer hear Molina at all. At 2:45 a.m. on May 26,

Jamison noticed Molina unresponsive in her cell. She

had passed away.

A post-mortem examination conducted by the Cook

County Medical Examiner, Dr. Eupil Choi, revealed

that Molina had ingested six tinfoil packets before

her demise. Toxicology reports showed that she had

morphine in her blood at the time of death. Based on this

information, Dr. Choi concluded that Molina died from

opiate intoxication complicated by obesity and cirrhosis

of the liver. Ortiz’s expert witness, Dr. Adelman, whose

testimony the district court excluded on Daubert grounds,

offered a competing opinion about the deterioration

of Molina’s health while in custody. Dr. Adelman con-

cluded that the deprivation of her medications for

diabetes and thyroid caused Molina to fall into a

myxedematous or diabetic coma, which eventually led

to her death. Dr. Adelman also stated that even if

Molina died of a heroin overdose, which he did not

think was the case, she could have survived had she

been taken to the hospital for medical care.

No. 10-1775 9

II

This lawsuit began when Michael Ortiz and another

plaintiff sued the City of Chicago and several police

officers on November 16, 2004 for § 1983 constitutional

and state law claims. On February 23, 2005, an amended

complaint added April Ortiz, Molina’s daughter, to the

lawsuit. Initially, the claims related to the arrest and

detention of Michael Ortiz and May Molina, but on

appeal our concern is only with Ortiz’s federal claims

on behalf of her mother’s estate, arising from Molina’s

detention and death. Unfortunately, this lawsuit has

taken a long and choppy path. One consequence of this

is that Ortiz’s medical expert, Dr. Adelman, did not

have access to all of the relevant materials until late in

the game. That is why, Ortiz says, Dr. Adelman sub-

mitted four different versions of his report to the court.

Ortiz also asserts that the district court’s grant of the

defendants’ motion for a stay of discovery prevented

them from identifying two important witnesses, Rice

and Vaccarello, until quite late in the proceedings.

Finally, we note that there appears to be an unresolved

dispute concerning whether the City of Chicago

stipulated to accept liability in this lawsuit if any of the

defendants was found to be liable.

Reflecting the staggered development of the case, the

district court resolved the two substantive issues Ortiz

raises on appeal in two different orders, and it addressed

her evidentiary issue in two more orders. Disposing of

the plaintiff’s ineffective medical care claim on May 13,

2008, the court concluded that only two of the

10 No. 10-1775

defendants were sufficiently on notice that Molina was

in need of medical care. These defendants, it held, were

entitled to summary judgment because the plaintiff

failed to put forth enough evidence on the proximate

cause of Molina’s death. The absence of evidence on

proximate causation, as the court acknowledged,

stemmed from the court’s prior exclusion of the plain-

tiff’s expert witness in an order dated October 7, 2007.

The court concluded that Ortiz had failed to remedy

the weaknesses in Dr. Adelman’s testimony by the time

of summary judgment. On February 18, 2010, the court

granted summary judgment for the two defendants

named in conjunction with the plaintiff’s Gerstein

claim, concluding that they were not responsible for

any delay in getting Molina to a bond hearing. We con-

sider first the medical care claim, including the evidentiary

point, and then the hearing claim.

III

A

The court rejected Ortiz’s claim that Molina received

constitutionally inadequate medical care in its order of

May 13, 2008. Our review is de novo, and we construe

all facts and reasonable inferences in the light most favor-

able to Ortiz, the nonmoving party. Stokes v. Bd. of Educ.,

599 F.3d 617, 619 (7th Cir. 2010). Before delving into the

facts, the court determined that the Fourth Amendment’s

reasonableness standard governs this inquiry, rather

than the deliberate indifference standard derived from

the Eighth Amendment and applied to claims from de-

No. 10-1775 11

tainees awaiting a trial by virtue of the Due Process

Clause. Because Molina had not yet benefitted from a

judicial determination of probable cause, otherwise

known as a Gerstein hearing, we agree that the Fourth

Amendment applies. See Lopez v. City of Chicago, 464 F.3d

711, 719 (7th Cir. 2006) (“Our cases thus establish that

the protections of the Fourth Amendment apply at arrest

and through the Gerstein probable cause hearing, due

process principles govern a pretrial detainee’s condi-

tions of confinement after the judicial determination of

probable cause, and the Eighth Amendment applies

following conviction.”); Williams v. Rodriguez, 509 F.3d

392, 403 (7th Cir. 2007).

Four factors inform our determination of whether an

officer’s response to Molina’s medical needs was objec-

tively unreasonable: (1) whether the officer has notice

of the detainee’s medical needs; (2) the seriousness of the

medical need; (3) the scope of the requested treatment;

and (4) police interests, including administrative, penologi-

cal, or investigatory concerns. Williams, 509 F.3d at 403.

Ortiz must also show that the defendants’ conduct caused

the harm of which she complains. See Gayton v. McCoy,

593 F.3d 610, 620 (7th Cir. 2010). The district court

properly narrowed the analysis by concluding that

third and fourth factors are off the table in this case

because the defendants do not assert that taking Molina

to the hospital would have been burdensome or compro-

mised any police interests. Our focus therefore is on

whether each individual defendant was on notice of

Molina’s condition, the seriousness of her medical needs,

and whether their failure to act caused her harm. As we

12 No. 10-1775

explained in Williams, “[t]he severity of the medical

condition under this standard need not, on its own, rise

to the level of objective seriousness required under the

Eighth and Fourteenth Amendments. Instead, the Fourth

Amendment’s reasonableness analysis operates on a

sliding scale, balancing the seriousness of the medical

need with the third factor—the scope of the requested

treatment.” 509 F.3d at 403.

The defendants do not dispute that the Williams frame-

work should guide our analysis, but they urge us to

focus primarily on another consideration. In light of the

inquiry we have just described, the defendants contend

that the conduct of the officers should be viewed in light

of the “short detention period” that usually spans the

time between arrest and the bond hearing. Since the

detention period should not generally exceed 48 hours,

see County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991),

they contend that lockup keepers should not be required

to whisk arrestees off to the hospital every time there

is a complaint. We agree with the defendants that the

relatively short period of time that a detainee spends in

lockup is pertinent to the analysis. Some medical pro-

cedures are urgent, but many are not time-sensitive

within a reasonable period. This general proposition,

however, is not a license for lockup keepers to deny

all arrestees all medical care simply because they will

probably be transferred within 48 hours. To the contrary,

“when the State takes a person into its custody and

holds [her] there against [her] will, the Constitution

imposes upon it a corresponding duty to assume some

responsibility for [her] safety and general well-being.”

No. 10-1775 13

See DeShaney v. Winnebago Cnty. Dep’t of Soc. Serv., 489

U.S. 189, 199-200 (1989). Each state actor who encounters

a detainee must reasonably respond to medical com-

plaints; a detainee cannot be treated like a hot potato, to

be passed along as quickly as possible to the next holder.

The duty to respond reasonably to an arrestee’s

medical needs is affected by any police policies that may

endanger the well-being of those in custody. Here, the

CPD’s policy of prohibiting detainees from taking med-

ication in lockup unless the individual is transported to

Cermak Hospital is central to our inquiry. We have no

occasion to comment on whether that policy is wise as a

general matter, but its existence cannot be ignored.

When a state actor detains a known diabetic in a facility

that separates her from the drugs that keep her alive,

it must take her medical needs into account in deciding

what justifies a trip to the hospital. Presumably, at

least part of the function served by creating a screening

record for each detainee upon arrival is to gain the in-

formation about her health status that is needed to

ensure that she remains safe while in custody. In short,

in cases like this we must consider everything that

each officer knew about Molina’s deteriorating health

in light of the amount of time she was in custody and

the CPD’s policy that detainees could not obtain any

medication unless they were sent to the hospital.

With these principles in mind, we examine whether

the conduct of each defendant was objectively reasonable

under the circumstances. As our discussion of the facts

indicates, each of them had some notice that Molina’s

14 No. 10-1775

health was bad. The question on summary judgment

is whether a jury could find that it was objectively unrea-

sonable for each defendant to take no action to seek

medical care for Molina based on what she knew at the

time. We will evaluate the case against each officer in

the order that she encountered Molina.

The evidence against Jamison, who worked two

9:30 p.m. to 5:30 a.m. shifts, first on the night Molina was

booked and then on the night she died, consists of the

following: (1) She created Molina’s screening record,

making note of the fact that Molina suffered from and

took medications for various serious medical conditions,

including diabetes; (2) According to Rice, Molina yelled

out a request for a doctor after she was placed in her cell

while Jamison was on duty; (3) Molina was still in

custody on May 26, when Jamison began her shift that

day, and Jamison knew Molina had not yet been taken to

her bond hearing (and thus could infer that, because

Molina had never left the lockup, she had not had access

to any of her medications); and (4) On the night of May 26,

according to Vaccarello, Molina again yelled for help

and asked for her medications.

The defendants respond by attacking the credibility

of Rice and Vaccarello, who were in lockup with Molina.

But none of their arguments undercuts the value of this

testimony at summary judgment, where we resolve all

disputed facts and make all reasonable inference in

favor of the plaintiff and do not weigh the credibility of

witnesses. We decline the defendants’ invitation to disre-

gard Rice’s and Vaccarello’s statements. We acknowl-

No. 10-1775 15

edge that Jamison and Pryor assert that Molina said

she did not need to go to the hospital when she first

arrived. But a jury would not be required to believe this

account, particularly since Molina’s death precludes her

from testifying on her own behalf. See Cobige v. City of

Chicago, Ill., 2011 WL 2708756, at *2 (7th Cir. July 12,

2011). Rice’s testimony, if credited by a jury, establishes

that Molina requested a doctor shortly after she was

booked, and Vaccarello’s testimony establishes that she

called out for her medications shortly before she died.

Based on the evidence in the record, a jury could

conclude that Jamison was on notice that Molina was

suffering from a serious medical condition that required

attention. See Egebergh v. Nicholson, 272 F.3d 925, 927-28

(7th Cir. 2001).

Officer Pryor, like Jamison, first encountered Molina

in the early morning hours of May 25. The evidence

against her is a subset of the evidence against

Jamison—Pryor asked Molina about her health when

she first arrived, observed her condition at the time, was

present when Jamison interviewed Molina to create

her screening record, and was present when (according

to Rice) Molina called out for a doctor. For largely the

same reasons that apply to Jamison, we think that a

reasonable jury could infer from this evidence that

Pryor was on notice that Molina was suffering from a

serious medical condition that required attention. When

an officer knows that an arrestee has an array of

medical conditions as serious as Molina’s, a call for

help from the arrestee asking to see a doctor is sufficient

to create notice of a serious medical need. Thus, we

16 No. 10-1775

hold that there is a genuine issue of fact with respect

to Jamison’s and Pryor’s notice of Molina’s need for

prompt medical attention. A jury could thus find

that their failure to get Molina to the hospital was unrea-

sonable.

We need not linger too long on whether Officers Yost

and Gilchrist, who staffed the following shift from

1:30 p.m. to 9:30 p.m. on May 25, were on notice that

Molina needed help. They were on duty when Bischoff,

Molina’s attorney, met with her that afternoon.

Bischoff says that he directly told them that Molina

was “clearly sick” and needed to be taken to the hospi-

tal. Given that (according to Bischoff) Molina was

unable to speak at the time, we cannot imagine more

direct notice that she needed medical care. Yost’s

assertion that she was not present when Bischoff spoke

to Gilchrist, and Gilchrist’s denial that Bischoff ever

made that statement, are immaterial to our present

inquiry. We of course resolve these disputed facts in

Ortiz’s favor.

Although the district court ultimately concluded that

Yost and Gilchrist were on notice, the court appeared to

doubt the import of Bischoff’s testimony because “it is

unclear whether Ms. Molina’s problems observed by

Mr. Bischoff . . . were symptomatic of diabetes or a thyroid

condition.” But whether Bischoff or anyone else knew

precisely what was the root cause of Molina’s physical

distress is not at issue here. Lockup keepers are not

medical professionals; neither are attorneys or other

detainees who happen to observe an arrestee in jail.

The question is not whether a particular defendant

No. 10-1775 17

knew what was wrong with Molina, but rather whether

the defendant, based on what she observed herself and

learned from others, should reasonably have known that

Molina needed medical care. We therefore reject the

defendants’ assertion that Yost and Gilchrist should be

excused because they could not have known why

Bischoff thought that Molina needed to be hospitalized.

We conclude that there is triable issue as to whether

they were on notice that Molina needed medical care.

We turn next to Ortiz’s related claims against Ramirez,

Wallace, and Holmes. The claim against Ramirez arises

solely from the fact that while she worked the front desk

on May 25, she received five to ten calls stating that

Molina needed either her medication or a doctor. The

defendants say that this alone is insufficient to put

Ramirez on notice that Molina needed medical care

because Ramirez could not have known who was calling

or if the caller was lying about Molina’s need for medica-

tion. And, they assert, Ramirez herself did not have the

authority to dispense medication to Molina or personally

to take her to the hospital. All she could do was notify

her supervisors, which she did.

The contention that the calls did not put Ramirez on

notice that Molina needed her medication because the

caller could have been lying is nonsensical. That explana-

tion may shed light on why Ramirez failed to act once

she was on notice—because she thought the caller was

lying—but it does not refute the receipt of notice. Was

it reasonable to do nothing aside from notifying her

supervisors after receiving the calls? That, in our view, is

18 No. 10-1775

the very question that the jury should decide. So we

conclude that there is a triable issue as to whether

Ramirez was on notice that Molina needed medical care.

For the same reason, we conclude that Ramirez’s super-

visors, Wallace and Holmes, were also on notice. We

recognize that the defendants now contend, for the first

time, that Ramirez worked during the daytime, not the

evening, and so she could not have informed supervisors

Wallace and Holmes (who apparently worked nights)

about the phone calls. Evidence on this issue is not part

of the record. To the contrary, the district court was

under the impression that Ramirez worked during the

evening, supporting the plaintiff’s narrative of the se-

quence of events. The parties should resolve this issue

on remand.

Finally, we turn to Officer Gomez, who with Jamison

worked the shift beginning at 9:30 p.m. on the night that

Molina died. As discussed above, the testimony of

Vaccarello, the detainee housed in the cell next to

Molina’s that last night, provides the best evidence that

the officers working that shift were on notice that she

needed medical care. Indeed, the district court concluded

that Vaccarello’s testimony creates a triable issue with

regard to the officers on duty at the time, but the court

appears erroneously to have believed that Yost and

Gilchrist, not Jamison and Gomez, were on duty then.

The defendants contend that Gomez never saw Molina

awake or spoke to her, and so she could not have

known that Molina needed any medical care. Without

Vaccarello’s testimony, that may have been undisputed.

But in light of Vaccarello’s statement that Molina called

No. 10-1775 19

out for her medications, we conclude that Gomez too

was on notice that Molina needed medical attention.

Thus, we conclude that defendants Jamison, Pryor, Yost,

Gilchrist, Ramirez, Wallace, Holmes, and Gomez had

sufficient notice that Molina needed medical care to

treat a serious medical condition. This, combined with

the fact that it would not have been difficult to

transport Molina to the hospital and no police interests

stood in the way of that treatment, leads us to conclude

that Ortiz has put forth enough facts to survive

summary judgment. Certainly, the evidence is of varying

strength against each defendant, but at this stage we do

not weigh the proof, make credibility determinations,

or resolve narrative disputes. Those tasks are left for

the trier of fact.

B

We must, however, resolve another issue before any

of these defendants can be compelled to face a jury.

Ortiz must present evidence sufficient to permit a jury

to infer that the defendants’ failure to act was a source

of harm for Molina. The district court initially framed

the causation inquiry as follows: “whether the admis-

sible evidence does create a genuine issue as to whether,

had [the defendants] done what they should have done

in light of what they observed about May Molina, and

seen to it that she was taken to a hospital where she

could have been diagnosed and treated, she would not

have died or have experienced pain and suffering prior

to her death.” This is the proper issue for analysis, but it

20 No. 10-1775

is not the one that the court pursued. Instead, it looked

at a much narrower issue: whether the plaintiff could

prove that the failure of the defendants to provide

Molina with access to her medications proximately

caused her death. With the issue thus framed, the court

focused its attention on the plaintiff’s expert witness,

Dr. Adelman. After excluding Dr. Adelman’s testimony

under Federal Rule of Evidence 702, the court concluded

that the plaintiff’s case necessarily failed on the issue

of causation. We think the district court misunderstood

the proximate cause inquiry and, relatedly, abused its

discretion in excluding Dr. Adelman’s testimony. We

also conclude it was an error for the court to disregard

the testimony of Ortiz’s second expert, Dr. Joye M. Carter.

Gayton v. McCoy illustrates how the district court

should have conducted the proximate causation analysis.

593 F.3d at 624-25. There, the detainee entered county

jail complaining of chest pain. The defendants knew

that the detainee suffered from a serious heart condition

and high blood pressure, but she was not provided

with any medication or examined by a doctor. While in

custody, she began suffering from heroin withdrawal

and vomited violently. Soon after, she died. The district

court decided that the plaintiff needed to show,

through expert testimony, that the defendant’s inaction

caused the detainee’s death. Id. at 624. After excluding

the plaintiff’s expert under Rule 702, the court granted

summary judgment for the defendants. We reversed, ex-

plaining that “even if the plaintiff could not proffer expert

testimony,” she still had “adequate causation evidence” to

get the case to trial. Id. We emphasized that “[p]roximate

No. 10-1775 21

cause is a question to be decided by a jury, and only in

the rare instance that a plaintiff can proffer no evidence

that a delay in medical treatment exacerbated an

injury should summary judgment be granted on the

issue of causation.” Id.

With the proper causation inquiry identified, it

becomes apparent that expert medical testimony estab-

lishing the cause of death is not required in this kind of

case at summary judgment. Where an obviously ill de-

tainee dies in custody and the defendants’ failure to

provide medical care is challenged, the causation

inquiry is quite broad: “the constitutional violation in

question here is the failure to provide adequate medical

care [] in response to a serious medical condition, not

‘causing her death.’ ” Id. at 619; see also Egebergh, 272

F.3d at 928 (reversing summary judgment because a

jury could infer that depriving arrestee of one insulin

shot exposed him to substantial danger). Here, a jury

could infer, based on medical records and witness testi-

mony, that the defendants caused Molina harm when

they failed to take her to the hospital after they knew

she suffered from a serious medical condition.

To avoid this result, the defendants cite Myers v. Illinois

Central R.R. Co., 629 F.3d 639 (7th Cir. 2010), for the propo-

sition that expert testimony is necessary to establish

causation. Myers was a Federal Employment Liabilities

Act (FELA) case that stated it is the norm for a plaintiff

to provide expert testimony to establish “specific causa-

tion” for “cumulative trauma disorders.” Id. at 642 (dis-

cussing the debate over how plaintiffs must establish

22 No. 10-1775

causation under FELA). That general FELA rule is of no

help to these defendants, because Ortiz is not required to

show “specific causation” for a particular result; she

needs only to establish that the failure to take Molina to

the hospital was unreasonable under the circumstances

and that it caused her some harm. The defendants also

argue that, to the extent that the plaintiff claims that

Molina was harmed by a delay in medical care, she must

produce “verifying medical evidence.” True, in Langston

v. Peters, we said that in delay of medical care cases, a

plaintiff must produce “verifying medical evidence.” 100

F.3d 1235, 1240-41 (7th Cir. 1996). Yet although expert

testimony satisfies this requirement, non-expert evidence

is sufficient as long as it permits the fact-finder to deter-

mine whether the delay caused additional harm. See

Williams v. Liefer, 491 F.3d 710, 715 (7th Cir. 2007); see also

Grieveson v. Anderson, 538 F.3d 763, 779 (7th Cir. 2008)

(holding that absent expert testimony, a jury could infer

that the defendant’s delay in providing care caused the

plaintiff “many more hours of needless suffering for no

reason.”). In any event, this is not a delay-of-medical-

care case, since Molina died before receiving any care.

Moreover, even if only a delay in providing medical care

were at issue here, there is enough non-expert verifying

medical evidence in this record to survive summary

judgment.

All that said, the district court was nevertheless

mistaken to exclude Dr. Adelman’s testimony and to

disregard that of Dr. Carter. Though the plaintiff does not

need the expert testimony to survive summary judg-

ment, the testimony remains important to the force of

No. 10-1775 23

her case. On one level, how (if at all) the defendants’

failure to act ultimately caused Molina harm is an

inquiry that would benefit from the input of experts. But

lurking just below the surface of this question is the

mystery of what actually caused Molina’s death: a

heroin overdose from small packages of drugs she alleg-

edly swallowed just before she was arrested, or the depri-

vation of her life-saving medications? Ortiz argues that

Dr. Adelman’s testimony should be admitted in support

of her argument that the defendants’ inaction caused

Molina’s death, in addition to needless pain and suffering.

We assume that at trial, the defendants will support

their theory of a heroin overdose.

Under Rule 702, expert testimony is admissible if (1) the

testimony is based on sufficient facts or data; (2) the

testimony is the product of reliable principles and meth-

ods; and (3) the witness has applied the principles and

methods reliably to the facts of the case. F ED. R. OF E VID.

702; Daubert v. Merrell Dow Pharm., 509 U.S. 579 (1993).

The district court has significant latitude in determining

how to measure the reliability of the proposed expert

and whether the testimony is in fact reliable. Gayton,

593 F.3d at 616. Still, the court must provide “more

than just conclusory statements” about admissibility to

show that it properly performed its gatekeeping function.

Id. The admissibility determination is not intended to

supplant the adversarial process, and so even “shaky”

testimony may be admissible. Id.

In his January 2, 2008, report, Dr. Adelman said that

it was his opinion, “to a reasonable degree of medical

24 No. 10-1775

probability, that Ms. Molina, deprived of her diabetic

and thyroid medications, fell into a comatose state, most

likely a diabetic coma or myxedematous coma, and died.

Had she been brought to a hospital even as late as when

her lawyer visited with her, the outcome would, to a high

degree of medical probability, been much different.”

Dr. Adelman, therefore, disagreed with the medical exam-

iner’s conclusion that Molina died of a narcotic overdose.

Nevertheless, Dr. Adelman also opined that even if she

had overdosed, death could have been averted if she

had been taken to the hospital.

The district court identified three key problems with

Dr. Adelman’s testimony: (1) his failure to consult

Molina’s medical records or her treating physician;

(2) his failure to discuss the prescribed dosages of her

medicine; and (3) his “speculative” conclusions. In the

end, the district court concluded that Dr. Adelman’s

testimony was not based on sufficient data, and, citing

General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997), the court

said that “there is simply too great an analytical gap

between the data and the opinion proffered.” We point out

that the court did not conclude that Dr. Adelman was

unqualified to provide expert testimony on the effect of

depriving Molina of her medicine. Indeed, the court noted

that Dr. Adelman could have acquired the relevant data

from Molina’s treating physician to make his testimony

more reliable. Cf. Gayton, 593 F.3d at 618-19 (finding

expert unqualified to testify about effect of cardiac med-

ications for inmate’s congenital heart failure because

he lacked training in cardiology or pharmacology,

but qualified to testify whether vomiting and diuretic

No. 10-1775 25

medications contributed to her illness and subsequent

death).

Our review of the record shows that the district court

was mistaken about the data on which Dr. Adelman

relied. Part of the problem may be that, because of the

defendants’ foot-dragging approach to discovery,

Dr. Adelman found it necessary to submit at least four

different reports over a three-year period, developing

his analysis as he had access to more data. Dr. Adelman’s

final report, dated January 2, 2008, does not list every-

thing he consulted to make his findings, but the previous

reports do. His August 20, 2005, report relied on a long

list of Molina’s medical and legal records, including:

(1) Norwegian Hospital medical records of May Molina

for December 29, 2003, admission (about five months

before her arrest); (2) medication list; (3) autopsy report

and photos; (4) toxicology report; (5) deposition of Dr.

Choi, Chief Medical Examiner; (6) CPD arrestee history

and supplementary reports; and (7) legal documents,

including complaint and search warrant. By the time Dr.

Adelman submitted his March 6, 2007, report, Ortiz had

collected more information from the defendants about the

night of Molina’s death, including the names of several

witnesses who saw Molina while in lockup. And for the

January 2, 2008, report, Dr. Adelman had reviewed

more information about Molina’s prescribed medications.

In particular, Dr. Adelman listed and discussed the

following medications prescribed to Molina: Glipizide, 10

mg; Metformin, 1,000 mg; Furosemide, 80 mg; Potassium

Chloride, 20 mEq; Albuterol inhaler; Enalapril, 5 mg; and

Ibuprofen, 800 mg.

26 No. 10-1775

Based on this information, it is plain that the district

court’s central reason for excluding Dr. Adelman’s testi-

mony—that his opinion was based on insufficient data—

was founded on an erroneous understanding of the

factual record. This alone constitutes an abuse of discre-

tion requiring reversal. See Musser v. Gentiva Health Serv.,

356 F.3d 751, 755 (7th Cir. 2004) (a district court’s decision

to exclude evidence based on clearly erroneous factual

findings is an abuse of discretion). We briefly address

the district court’s other concerns to simplify proceedings

on remand. First, Dr. Adelman’s supposed failure to

consult with Molina’s treating physician is something

that would go only to the weight, not to the admissibility,

of his opinion. In fact, it is not evident that Molina had

a primary care physician at the time. More importantly,

once we take full stock of the material Dr. Adelman

considered in developing his expert opinion, we do not

see what additional information he could have dis-

covered from speaking to a primary care physician that

he did not already have before him. This is especially

true since Dr. Adelman examined the records from

Molina’s hospital visit only five months before her ar-

rest. Second, we do not see why the district court was

so concerned that Dr. Adelman failed to discuss how

often Molina took each of her prescribed medications.

Molina was deprived of all medication for over 24 hours.

Dr. Adelman’s opinion is that this was too long, and

that this degree of deprivation caused her harm and

ultimately her death. Under these circumstances, we

cannot agree that Dr. Adelman’s failure to discuss how

often Molina took each medication is dispositive of

whether his expert opinion is reliable.

No. 10-1775 27

As in Gayton, Dr. Adelman’s expert opinion was derived

from examining a “cold record,” including an autopsy

report, medical records, and the testimony of prison

guards and other witnesses. 593 F.3d at 618. His opinion

explaining what he believes happened to Molina in

the final hours of her life need not conclusively and

indisputably attest to the cause of her death. See id. at 619

(“As we have held on many occasions, an expert need

not testify with complete certainty about the cause of an

injury; rather he may testify that one factor could have

been a contributing factor to a given outcome.”). The

district court’s concern that Dr. Adelman’s testimony

did no more than provide “a series of hypotheses

about what could have happened” is misplaced. See

Walker v. Soo Line R.R. Co., 208 F.3d 581, 587 (7th Cir. 2000).

Similarly, the defendants’ assertion that Dr. Adelman’s

ultimate conclusions are incorrect should be redirected

toward the jury. We conclude that the court should have

accepted Dr. Adelman as an expert witness.

We can be brief with the court’s rejection of Dr. Carter.

Dr. Carter’s testimony was limited to whether, assuming

that she died of a heroin overdose, Molina would have

suffered less if she had been taken to the hospital. The

defendants assert that the court decided not to consider

Dr. Carter’s testimony because it was untimely, but once

again the record does not support that assertion. As with

other aspects of this case, the choppy nature of the pro-

ceedings seems to have generated more than a little

confusion. The record shows that the court gave the

parties until January 8, 2008, to name additional experts.

Dr. Carter’s report is dated January 5, 2008, comfortably

28 No. 10-1775

within that deadline. Ortiz appears to have submitted the

final report of Dr. Adelman along with Dr. Carter’s report,

but the court considered only Dr. Adelman’s testimony.

On top of all that, the defendants have not shown us

any ruling of the district court excluding Dr. Carter as

untimely. They merely hypothesize about why the court

failed to mention her. We are not persuaded by this

conjecture; on remand, the court should evaluate the

admissibility of Dr. Carter’s testimony in light of the

principles we have outlined in this opinion. To minimize

confusion in future proceedings, we reiterate that the

proper question is whether Dr. Carter’s testimony could

help the jury understand whether the defendants’

failure to take Molina to the hospital exacerbated her

injury. It is not necessary, although it would be permis-

sible, for her to testify about the precise cause of

Molina’s death. See Cobige, 2011 WL 2708756, at *2

(holding that medical expert’s testimony was admissible

on whether someone with the decedent’s symp-

toms should have been taken to the hospital).

C

In light of our decision to reverse the grant of summary

judgment in favor of the seven defendants mentioned

above, we must address the defendants’ qualified immu-

nity defense. They argue that the uncertainty over

whether the “deliberate indifference” or “objectively

unreasonable” standard governs the medical care claim

entitles them to qualified immunity. They argue that until

2007, when we decided Williams v. Rodriguez, 509 F.3d

No. 10-1775 29

392 (7th Cir. 2007), and Sides v. City of Champaign, 496

F.3d 820 (7th Cir. 2007), no decision had applied the

Fourth Amendment to analyze the reasonableness of the

provision of medical care to arrestees. While that may be

true, we have long held that the Fourth Amendment

protects a person’s rights until she has had a probable

cause hearing. See Luck v. Rovenstine, 168 F.3d 323, 326

(7th Cir. 1999) (“There is, to be sure, a difference between

the constitutional provisions that apply to the period of

confinement before and after a probable cause hearing: the

Fourth Amendment governs the former and the Due

Process Clause the latter.”); Villanova v. Abrams, 972

F.2d 792, 797 (7th Cir. 1992) (same). The multifactor test

announced in Sides and clarified in Williams was unan-

nounced at the time of Molina’s death, yet it was quite

clear that the Fourth Amendment applied to her stage

of the criminal process.

But even if we were to assume that the standard we

have applied in this case was not clearly established at

the time Molina died, the outcome of this case would be

unaffected. To survive summary judgment, Ortiz would

then be required to satisfy the more stringent deliberate

indifference standard. This, however, is not a case that

turns on the difference between the two standards. Ortiz’s

argument, if credited by a jury, satisfies the deliberate

indifference standard because she argues that defendants

were subjectively aware that Molina had a serious

medical condition that needed care and they failed to

respond adequately. See Sherrod v. Lingle, 223 F.3d 605,

610 (7th Cir. 2000). The defendants do not argue that

Molina did not suffer from an objectively serious

medical condition. The question is only whether the

30 No. 10-1775

officers’ failure to act was not only negligent, but deliber-

ately indifferent. Yet it is well settled that providing no

medical care in the face of a serious health risk constitutes

deliberate indifference. See Walker v. Benjamin, 293 F.3d

1030, 1037 (7th Cir. 2002). This is not a case where

prison officials provided substandard medical care and

we must decide whether they crossed the line from

medical malpractice (negligence) to deliberate indif-

ference (recklessness). Ortiz’s claim is that each of the

defendants knew that Molina suffered from a serious

medical condition, yet they failed to take any step in

response. At this stage, she has done enough to defeat

summary judgment even if the higher standard applied.

We therefore conclude that the defendants are not

entitled to qualified immunity on this claim.

IV

Finally, we address Ortiz’s Gerstein claim. A person

arrested without a warrant is entitled to a timely “judicial

determination of probable cause as a prerequisite to

extended restraint of liberty following arrest.” Gerstein v.

Pugh, 420 U.S. 103, 114 (1975). In County of Riverside, 500

U.S. at 56-57, the Supreme Court adopted a burden-shifting

approach using 48 hours as its benchmark. Detentions

over 48 hours are presumptively unreasonable and the

state bears the burden of proving that specific circum-

stances justified the delay, while the plaintiff bears the

burden of showing any detention under 48 hours is

unreasonable. See Portis v. City of Chicago, 613 F.3d 702,

704 (7th Cir. 2010).

No. 10-1775 31

Ortiz argues that Molina’s identity and fingerprints

were verified by 7:01 a.m. on May 25, and it was unrea-

sonable for Officers Ziemba and Lemon-Richmond not

to present her to a judge that day. The defendants

assert that it took about five additional hours to

complete administrative tasks—in this case updating

her “rap sheet” from a paper file to a computer—and so

Molina was not cleared for a probable cause hearing

until 12:12 p.m. After that, according to the defendants,

it was not possible to take her to court because an

arrestee needs to be at Criminal Court by 10:30 a.m. for

a probable cause hearing. The plaintiff responds that

there was a 1:30 p.m. bond call available and that it

would have been possible to get Molina to court even later.

The district court granted summary judgment in favor

of Ziemba and Lemon-Richmond on this claim, finding

that neither of them was personally liable for the delay.

Both of them worked the 5:30 a.m. to 1:30 p.m. shift on

May 25, and they do not dispute that it was their duty

to get arrestees “going to court” once they were cleared

for their appearance. But the record shows that Molina

was not cleared for court until 12:12 p.m., leaving only

slightly more than an hour for the two officers to get

Molina on her way to court before their shift ended

(assuming, favorably to Molina, that there was a 1:30 p.m.

bond call). Since a delay of one hour did not appear

unreasonable to the court, it absolved Ziemba and

Lemon-Richmond of all liability.

We agree with the district court that Ortiz has not

identified enough facts to establish individual liability of

32 No. 10-1775

Ziemba and Lemon-Richmond on this claim. “To establish

personal liability in a section 1983 action, the plaintiff

must show that the officer ‘caused the deprivation of a

federal right.’ ” Luck, 138 F.3d at 327 (quoting Hafer v.

Melo, 502 U.S. 21, 25 (1991)). With respect to Ortiz’s first

claim that Molina’s rights were violated because the

defendants opted to update Molina’s criminal history

into a computer database from her printed rap sheet

(causing the delay from 7:01 a.m. to 12:12 p.m.), Ortiz

fails to explain what role—if any—Ziemba and

Lemon-Richmond had with this task. Indeed, the

record indicates that these administrative steps were

undertaken not by these two defendants, but by some-

one else. We thus agree with the district court that

Ziemba and Lemon-Richmond are not liable based on

that theory. We express no opinion on whether it was

reasonable for the CPD to take this administrative step

before presenting Molina to a judge for a probable

cause hearing.

That leaves Ziemba and Lemon-Richmond on the hook

for only the period between 12:12 p.m. when Molina

was cleared for bond court and 1:30 p.m. when their shift

ended. Even if we assume that there was a 1:30 p.m. bond

hearing that Molina could have attended, her claim fails.

It is the plaintiff’s burden to rebut the presumption of

reasonableness for a detention that lasts less than 48

hours, and Ortiz has not done so. See Portis, 613 F.3d at

704 (observing that arrestees in Chicago are not required

to be taken before a judge within 12 hours just because

the city operates 24-hour courts). Moreover, it is well

known that the “Fourth Amendment does not compel

No. 10-1775 33

an immediate determination of probable cause upon

completing the administrative steps incident to arrest.”

County of Riverside, 500 U.S. at 53-54. We note, finally, that

though Ortiz makes some references to the City’s policy

of completing unnecessary administrative tasks before

sending an individual to a probable cause hearing, she

has not pleaded or argued on appeal an independent

claim based on an “official policy” of the City of Chicago.

See Luck, 138 F.3d at 325-26 (explaining actions against

municipalities).

For these reasons, we A FFIRM the district court’s grant

of summary judgment for defendants Ziemba and

Lemon-Richmond. We R EVERSE the grant of summary

judgment for defendants Jamison, Pryor, Yost, Gilchrist,

Ramirez, Wallace, Holmes, and Gomez and R EMAND

for further proceedings consistent with this opinion.

We also instruct the district court to determine whether

the parties have entered into a valid stipulation re-

garding the City’s acceptance of liability if any of the

defendants are found liable to Ortiz.

8-25-11